Opinion
Index No. 156191/2020 Motion Seq. No. 001
01-30-2023
US CONCRETE, INC. -NYC DIVISION, THROUGH ITS WHOLY OWNED SUBSIDIARY, USC-KINGS, LLC, Plaintiff, v. THE RINALDI GROUP, LLC, QBE INSURANCE CORPORATION, Defendants.
Unpublished Opinion
MOTION DATE 05/18/2022
PRESENT: HON. DAVID B. COHEN, JUSTICE
DECISION + ORDER ON MOTION
DAVID B. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 were read on this motion to/for DISMISSAL.
In this mechanic's lien proceeding, defendants The Rinaldi Group, LLC and QBE Insurance Corporation move pursuant to CPLR 1003 for an order dismissing the complaint. Plaintiff opposes and, by notice of cross motion, moves pursuant to CPLR 602(a) for an order granting consolidation of the instant action with another pending in this court. Movants oppose the cross motion.
BACKGROUND
Plaintiff alleges that it supplied concrete to a hotel development project at 122 Water Street in Manhattan, and is owed $135,348.86. It contends that the owner of the property hired The Rinaldi Group, LLC as the general contractor. Rinaldi allegedly subcontracted out a portion of the project to Castle Industries, Inc., which in turn sub-sub-contracted out concrete supply to plaintiff (NYSCEF 1).
Plaintiff filed a mechanic's lien against the property, and defendant QBE Insurance Company discharged the lien by filing a bond in the amount of $148,883.75 or 110% of the amount claimed, thereby removing any cloud on title to the underlying property. Plaintiff then filed this suit against Rinaldi and QBE, seeking to be paid under the bond (NYSCEF 1-3).
Defendants answered, denying liability and alleging various affirmative defenses, including that the lien was willfully exaggerated and therefore void under Section 39 of the Lien Law. Rinaldi in turn filed a third-party complaint against County-Wide Construction Corp., alleging that it was the construction manager on the project, and that plaintiff "was a subcontractor, lower tier contractor, or supplier of County-Wide at the Project" (NYSCEF 6, 11).
County-Wide answered, denying liability, and asserted its own third-party complaint against Carben Industries, Inc. and its principal (NYSCEF 18, 20).
It appears that several other liens were filed against the property related to the project at issue. Carben has the largest lien, for $1,535,755.17, and it commenced its own foreclosure action in this court. The five other liens range from approximately $5,000 to $50,000, and one of them was filed by Engineered Devices, which commenced its own foreclosure action against Rinaldi and QBE in this Court. It does not appear that any lienors other than plaintiff, Carben, and Engineered Devices, have filed an action to enforce their liens (NYSCEF 32). From the pleadings filed in the Carben and Engineered Devices actions, QBE issued separate bonds for all of the mechanics' liens filed on the property, thereby discharging them.
MOTION TO DISMISS AND CROSS MOTION TO CONSOLIDATE
Defendants move to dismiss, arguing that additional lienholders against the property arising out of the same project are necessary parties, and the failure to join them here is fatal to the proceeding. They rely on section 44 of the Lien Law, which provides that:
"[i]n an action in a court of record to enforce a lien against real property... the following are necessary parties defendant: (1) All lienors having liens notices of which have been filed against the same real property.... (4) All persons appearing by the records in the office of the county clerk or register to be owners of such real property or any part thereof."
Plaintiff opposes the motion solely to the extent of cross-moving for consolidation of this proceeding with the already-filed Engineered Devices action or, if consolidation is denied, for leave to amend its complaint to add the other lienholders to this action.
To the extent that the other lienholders are necessary parties (see Harlem Plumbing Supply Co., Inc. v Handelsman, 40 A.D.2d 768 [1st Dept 1972] [finding that property owner was necessary party in action to foreclose mechanic's lien even though lien was discharged by deposit]; but compare M. Gold & Son v A.J. Eckert, Inc., 246 A.D.2d 746 [3d Dept 1998] [owners of real property not necessary parties as bond filed to discharge lien]; Bryant Equip. Corp., v A-1 Moore Contr. Corp., 51 A.D.2d 792, 793 [2d Dept 1976] [once bond filed to discharge lien, mortgagee was no longer necessary party as "there is no longer in existence an action to enforce a lien against real property. The bond has replaced the real property as the security to be attached and attacked."]; Dorna Inc. v 885 Park Ave. Corp., 59 Misc.3d 703 [Sup Ct, New York County 2018] [same]), plaintiffs application to consolidate this action with the Engineered Devices foreclosure action would not result in the addition of all of the necessary parties, as it does not account for Carben's pending foreclosure action or the other lienholders who have not commenced their own actions.
However, as plaintiff alternatively seeks leave to amend its complaint to add all necessary parties, the motion is meritorious (see e.g., Plumbing Supply Co., Inc., 40 A.D.2d at 768).
Accordingly, it is hereby:
ORDERED, that defendants' motion to dismiss for failure to join necessary parties is denied; and it is further
ORDERED, that plaintiffs cross motion to consolidate is denied, but plaintiff is granted leave to amend its complaint to add all necessary parties; and it is further
ORDERED, that plaintiff file and serve its amended complaint within 30 days of the date of this order, and upon its failure to do so, defendants may renew their motion to dismiss.